THREATS AND RESPONSES: THE COURTS

By NEIL A. LEWIS

Published: June 27, 2003

WASHINGTON, June 26—
A federal appeals court today rejected for the time being the Bush administration's request that it prohibit Zacarias Moussaoui from interviewing captured people linked to Al Qaeda to support his defense that he was not involved in the Sept. 11 terrorist plot.

But the three-judge panel of the court, in Richmond, Va., left open the likelihood that it would revisit the issue. In rejecting the government's appeal, the court said a lower court's order to allow Mr. Moussaoui's lawyers to interview one captured Qaeda figure had not yet reached the stage at which it could be reviewed. The judges said that if and when the Justice Department went through with its threat to refuse to make any Qaeda figures available and the trial judge sanctioned the government, an appeals court could then consider intervening in the trial.

For the most part, today's ruling is little more than a bump in the road as the courts move to resolve the complex issue of balancing Mr. Moussaoui's right to avail himself of any witnesses that would help his case against the Justice Department's claim that making the Qaeda figures available would severely compromise both national security and the continuing interrogation of the captives.

''We are compelled to conclude that we are without authority'' to intervene in the case because the order of the lower court ''is not yet an appealable one,'' the panel of the United States Court of Appeals for the Fourth Circuit wrote.

Resolution of the issue has been eagerly awaited by prosecutors and civil liberties lawyers as it will probably determine whether the government can continue prosecuting members of Al Qaeda and other important terrorist suspects in civilian courts.

''The government has not notified the district court of its refusal to comply'' with the order to make the Qaeda figures available, the panel said in an opinion written by Chief Judge William W. Wilkins Jr.

The issue was set in motion by Mr. Moussaoui's request to have his lawyers interview Ramzi bin al-Shibh, who the government contends coordinated the attacks of Sept. 11, 2001. Mr. bin al-Shibh was captured last year in Pakistan and is being held at an undisclosed place outside the United States.

The Justice Department has argued that Mr. Moussaoui has no right to interview Mr. bin al-Shibh and that the government cannot make captured terrorists available for testimony without divulging national security secrets and interrupting the government's effort to interrogate them for information that might pre-empt terrorist attacks.

But twice this year, Judge Leonie M. Brinkema of Federal District Court in Alexandria, Va., has ruled that Mr. Moussaoui's right to seek trial testimony for his defense overrides the government's claims of national security damage.

Barbara Comstock, a spokeswoman for the Justice Department, said today that government lawyers were studying the ruling, which she noted did not deal with the merits of the case. ''The opinion addresses certain threshold procedural and jurisdictional matters which we are studying,'' Ms. Comstock said.

Some officials said that while an option would be to appeal to the full Fourth Circuit, it was more likely they would simply complete the procedural steps the panel outlined today and then seek review again.

In arguing for the government this month, Michael Chertoff said that ''the damage to the United States will be immediate and irreparable'' if a court allowed Mr. Moussaoui to interrupt the interrogation of Qaeda suspects held abroad.

At the same argument, Frank W. Dunham Jr., representing Mr. Moussaoui, disclosed that at least one condition noted by the court today had occurred. Mr. Dunham said Attorney General John Ashcroft had recently filed a secret affidavit in which he said that Mr. bin al-Shibh would not be made available for defense testimony.